Fitzsimmons Law Firm recently filed a wrongful death claim against Consolidation Coal Company on behalf of a miner killed in a surface mining accident at Consol's Shoemaker Mine located in Benwood, Marshall County, West Virginia. The miner was killed when a ditch digger machine unexpectedly trammed forward thereby striking and crushing the miner underneath the heavy machinery. The miner was employed by Consolidation Coal Company as a laborer at the time of his death.
In the Complaint, the Plaintiff asserted a "deliberate intention" claim pursuant to W.Va. Code § 23-4-2(d)(2)(ii) against Consolidation Coal Company alleging that Consolidation Coal Company intentionally exposed the miner to unsafe working conditions. Specifically, the Complaint alleges that Consolidation Coal Company failed to ensure a workplace free of recognized hazards; failed to ensure that the miner was properly trained on operating heavy machinery, including power haulage equipment, trolley jumpers, and ditch diggers; failed to ensure that mining equipment was kept and maintained in a safe operating condition; failed to ensure that mining equipment and, in particular, the ditch digger was equipped with required safety devices, including but not limited to, an emergency stop switch, self-centering valves, or other devices designed to de-energize the traction motor circuit; failed to implement engineering controls to prevent automatic movement of the ditch digger upon application of electrical power; failed to ensure that the equipment and machinery operated by the miner was properly marked and identified to distinguish the equipment and/or machinery's functions; and failed to conduct a proper Job Safety Analyses (JSA). The Complaint further alleges that these safety violations constituted violations of MSHA regulations, the West Virginia Office of Miners' Health and Safety Training rules and regulations; West Virginia coal mining laws and regulations; federal and/or state safety statutes, rules, or regulations; and/or commonly accepted and well-known standards within the coal mining industry.
In West Virginia, and almost every other state, an employer is afforded immunity from tort claims by its employees for negligently caused work-related injuries. In West Virginia, however, an employer is stripped of that immunity if it is shown that the employer acted with "deliberate intention." "Deliberate intention" can be proven by showing that employer violated the elements set forth in W.Va. Code §23-4-2(d)(2)(ii) which essentially requires an employee to prove that the employer knowingly exposed the employee to an unsafe working condition that was also a violation of state or federal safety statutes, rules or regulations, whether cited or not, or of commonly accepted and well-known safety standards within the industry or business of the employer.